Standard Rope & Twine Co. v. Olmem

• Decision Date: 20 June 1900
• Citation: 83 N.W. 271,13 S.D. 296
• Parties: STANDARD ROPE & TWINE CO. v. OLMEM et al.
• Court: South Dakota Supreme Court

83 N.W. 271

13 S.D. 296

STANDARD ROPE & TWINE CO. v. OLMEM et al.

Supreme Court of South Dakota

June 20, 1900

Appeal from circuit court, Minnehaha county; Joseph W. Jones, Judge.

Action by the Standard Rope & Twine Company against A. M. Olmem and others for goods sold and delivered. From a judgment for defendants, plaintiff appeals. Affirmed.

Corson J., dissenting.

Davis Lyon & Gates (H. F. Woodard, of counsel), for appellant. A B. Kittredge, for respondents.

FULLER P. J.

Upon the evidence introduced at the trial of this action, to recover $1,760 for a car load of Sisal binding twine manufactured by plaintiff, and sold at that price to the defendant Olmem, the jury found that the same was without value; and this appeal is from a judgment accordingly entered, and from an order overruling a motion for a new trial.

On the 20th of June, 1898, respondent, at his place of business, at Garretson, S. D., addressed a letter to appellant, at Minneapolis, Minn., in part as follows: "I shall need 20,000 lbs. No. 1 Sisal binding twine. Can you furnish me that amount? *** If so, please let me know by return mail. ***" Within a day or two the price and terms of payment were agreed upon, and the appellant sent respondent a 60-pound sample bag of Sisal twine, of excellent quality labeled "Crown Brand," by the use of a tag attached to each ball. On the 15th day of July following a formal written order or contract for the twine was approved by the company, and shipment of the car load was made, arriving at Garretson about four days later, where it was taken from the car to respondent's warehouse, and some of the bags opened. Now, this was not the Crown, but the Sewall Day, brand, as shown by a tag attached to each ball, upon which was printed the following representation: "Every ball guarantied of superior quality." The record contains superadded facts which convincingly establish that the entire car load of twine was absolutely worthless, and concerning the point respondent testified: "When I received the car load of twine from the plaintiff, I saw that it was not the twine I expected. I expected that it would be Crown brand, so I opened a good many of the bags, and found that it was all the same. I found that the balls contained a slip, with a special guaranty on every ball, and I relied upon that guaranty that this brand of twine might be as good as the Crown brand. I had known the Crown brand for three years. I noticed that this twine was a lighter color than any Sisal twine I ever saw. Of course, Sisal twine is generally lighter than some other kinds of twine, but this twine had a lighter color than any Sisal twine I ever saw. I did not pay any attention to that, because I relied upon the guaranty, and supposed it would be a superior quality and good twine. As regards oil or grease, I noticed that, when I piled it on the floor, that it did not show any marks on the floor. All the twine I ever handled before would leave kind of oil marks, and would stick to the floor for months, which I took to be an insect preparation. The Crown brand, with which I was familiar, would leave sort of grease marks on the floor. That is true of all the twine I ever had, except the twine in controversy. I have had from two to three car loads a year. I observed how this twine worked in the field at Allen's place. I noticed that the binder threw out a good many loose bundles, and that he had a good deal of trouble in cleaning the needle and rethreading the needle, because the twine was stiff and had big lumps in it. Seems as though...